Decision Nº 821/23 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023

• Judge: V. Patel : Vice-Chair
• Judgment Date: 15 September 2023
• Neutral Citation: 2023 ONWSIAT 1427
• Judgement Number: 821/23
• Hearing Date: 09 June 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 821/23 15-Sep-2023 V.Patel

• Preexisting condition (shoulder condition)

• Second Injury and Enhancement Fund {SIEF} (severity of accident)

• Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

No Summary Available

9 Pages

References:	Act Citation WSIA ; Other Case Reference [w4523n]
Style of Cause:
Neutral Citation:	2023 ONWSIAT 1427

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 821/23

BEFORE: V. Patel : Vice-Chair

HEARING: June 9, 2023 at Toronto Written

DATE OF DECISION: September 15, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1427

DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated

May 27, 2022

APPEARANCES:

For the worker: Self-represented

For the employer: M. Mitchell, Paralegal

Interpreter: N/A

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7^th Floor 505, avenue University, 7^e étage

Toronto ON M5G 2P2 Toronto ON M5G 2P2

REASONS

1. Introduction

[1] The worker appeals an ARO decision dated May 27, 2022, which concluded that 90% cost relief from the Secondary Injury and Enhancement Fund (SIEF) was in order.

[2] The ARO rendered a decision based upon the written record without an oral hearing.

2. Issues and decision

[3] With respect to the worker’s appeal, the issue, as identified in the Hearing Ready Letter, dated March 20, 2023 is the quantum of the SIEF cost relief.

3. Background

[4] On October 5, 2018, the worker, a Registered Practical Nurse (RPN), reported a left shoulder injury after blocking an aggressive patient from hurting others.

[5] The worker was diagnosed with a left scapular, rhomboid, trapezius and upper back strain. The Health Professional's Report - Form 8 dated October 9, 2018 indicated the worker had undergone left shoulder surgery in July of 2017.

[6] On October 24, 2018, entitlement for health care benefits was granted for a left shoulder and upper back injury. Entitlement was extended to include a left large partial bursal surface tear at the left supraspinatus tendon.

[7] On March 7, 2019, partial loss of earnings (LOE) benefits from November 5, 2018 to

November 19, 2018, December 3, 2018 to December 27, 2018, and from January 21, 2019 onward was confirmed. The payment of a partial loss of earnings benefits from

November 19, 2018 to December 3, 2018 and for December 27, 2018 to January 21, 2019 was not approved because the worker was off work for reasons unrelated to the workplace injury.

[8] As of January 21, 2019, the worker performed six hours of modified duties, three days per week. As of April 1, 2019, the surgeon recommended that the worker scale back and perform four hours of modified duties, three days per week.

[9] On May 9, 2019, entitlement to surgery was confirmed. The worker underwent repair of the left shoulder tear in June of 2019.

[10] On May 16, 2019, the employer requested entitlement to SIEF based on the worker's pre- existing left shoulder symptoms and surgery.

[11] On July 16, 2019, the Case Manager (CM), finding the severity of accident was moderate and that the worker had a pre-existing condition of a moderate severity, granted the employer 50% SIEF cost relief.

[12] On September 10, 2019, the employer representative wrote to the CM arguing that the severity of the accident was minor based on the fact that the worker delayed in seeking medical attention. The worker was symptomatic pre-accident and returned to a modified work program for the left shoulder in September 2018. It was argued that a significant pre-existing condition prolonged and enhanced the recovery.

[13] On November 29, 2019, the employer representative wrote to the CM requesting 90% SIEF based on a minor accident history and a significant pre-existing condition/disability.

[14] On December 12, 2019 and July 7, 2020, the CM, on reconsideration, confirmed the 50% SIEF quantum. The employer objected to the July 7, 2020 decision.

[15] On May 27, 2022, the ARO concluded 90% SIEF cost relief was warranted.

[16] The worker now appeals the May 27, 2022 ARO decision to the Tribunal.

4. Law and policy

[17] Since the worker claimed to be injured in 2018, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

[18] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, apply to the subject matter of this appeal: 247 and 299.

[19] OPM Document No. 14-05-03, entitled “Second Injury and Enhancement Fund” provides in part:

Policy

If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF.

Both physical and psychological disabilities are included.

Guidelines

There is no provision in the Act for the Fund to apply to Schedule II employers.

In situations where alcoholism plays a role in the causation of an accident, it is not considered to be a pre-existing condition with regard to the application of SIEF relief.

The objectives of this policy are to provide employers with financial relief when a pre-existing condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities.

Definitions

Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment.

Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident.

(…)

SIEF-application to employer costs

Medical significance of pre-existing condition*	Severity of accident**	Percentage of cost transfer***
Minor	Minor Moderate Major	50% 25% 0%

Medical significance of pre-existing condition*	Severity of accident**	Percentage of cost transfer***
Moderate	Minor	75%
	Moderate	50%
	Major	25%
Major	Minor	90%-100%
	Moderate	75%
	Major	50%

NOTES

* The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist.

With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment.

** The severity of the accident is evaluated in terms of the accident history and approved definitions.

Accident History Components

• mechanics (lift, push, pull, fall, blow, etc.)

• position (kneeling, standing, sitting, squatting, bending, etc.)

• environment (lighting, temperature, weather conditions, terrain, etc.)

Definition – “Severity of Accident”

Minor: expected to cause...